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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Wagenvoord Advertising Group, Inc. Licensee of Radio
   Station KLRG-AM Sheridan, AR ) ) ) ) ) ) ) File No.:
   EB-FIELDSCR-12-00000481 NAL/Acct. No.: 201232620003 FRN: 0010300747
   Facility ID No.: 14053




                                FORFEITURE ORDER

   Adopted: March 1, 2013 Released: March 1, 2013

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of seven thousand dollars ($7,000) to Wagenvoord
       Advertising Group, Inc. (Wagenvoord), licensee of Station KLRG-AM
       (Station), in Sheridan, Arkansas, for willful and repeated violation
       of Section 73.49 of the Commission's rules (Rules).^ The noted
       violation involved Wagenvoord's failure to have an effective locked
       fence around its antenna structure.

   II. BACKGROUND

    2. On July 19, 2012, the Enforcement Bureau's New Orleans Office (New
       Orleans Office) issued a Notice of Apparent Liability for Forfeiture
       and Order  (NAL)^ to Wagenvoord for its failure to enclose its antenna
       structure within an effective locked fence. Wagenvoord submitted a
       response to the NAL requesting cancellation of the proposed $7,000
       forfeiture because it claims (1) the antenna structure does not pose a
       public safety hazard since it stands on top of a 7-foot concrete pylon
       which does not have radio frequency (RF) potential at its base, or
       alternatively, qualifies as an "other enclosure,"^ (2) the NAL
       overstated the size of the break in the fence surrounding the antenna
       structure,^ and (3) the Station's engineer did not admit, as alleged
       in the NAL, that he had been aware of the fence's condition for about
       two weeks.^

   III. DISCUSSION

    3. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       (Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
       Statement.^ In examining Wagenvoord's response, Section 503(b)(2)(E)
       of the Act requires that the Commission take into account the nature,
       circumstances, extent, and gravity of the violation and, with respect
       to the violator, the degree of culpability, any history of prior
       offenses, ability to pay, and other such matters as justice may
       require.^ As discussed below, we have considered Wagenvoord's response
       in light of these statutory factors and find that cancellation or
       reduction of the forfeiture is not warranted.

    4. Section 73.49 of the Rules states that antenna structures "having
       radio frequency (RF) potential at the base . . . must be enclosed
       within effective locked fences or other enclosures."^ Wagenvoord
       argues that this rule does not apply, because the base of the concrete
       structure at ground level does not have RF potential.^ We disagree and
       find that the base referenced in Section 73.49 refers to the base of
       the metal portion of the antenna structure, not the base of anything
       to which the structure may be attached. Here, it is undisputed that
       the Station's antenna structure had radio frequency potential at the
       metal base (albeit not at ground level). Thus, we conclude the rule
       does apply and Wagenvoord is required to enclose the antenna structure
       within an effective locked fence or other enclosure.

    5. In the alternative, Wagenvoord asserts that the forfeiture should be
       cancelled, as in Bennett Broadcasting FO,^ because the 7-foot concrete
       base qualifies as an "other enclosure." We disagree. In Bennett
       Broadcasting FO,^ the antenna structure was located in a flood plain,
       which precluded the erection of a fence, and local zoning laws forced
       Bennett Broadcasting to develop an alternative to a fence. The Bureau
       cancelled the forfeiture and concluded the concrete base met the
       "other enclosure" requirement based on the "totality of the
       circumstances."^ Thus, the Bureau did not conclude that all concrete
       bases qualify as "other enclosures," as Wagenvoord implies. Here,
       Wagenvoord was not precluded from erecting a fence, and there is no
       evidence that it was unable to construct^ or maintain an effective
       locked fence around its antenna structure. Moreover, Wagenvoord failed
       to produce any other precedent in which the Bureau accepted something
       less than a fence to comply with Section 73.49 of the Rules.^
       Therefore, we find no basis to require anything other than an
       effective locked fence in this case.

    6. Turning to Wagenvoord's argument regarding the condition of the fence,
       it is undisputed that there was a gap in the fence surrounding the
       antenna structure. Agents from the New Orleans Office observed the gap
       in the fence surrounding the antenna structure on two separate days -
       January 24 and 25, 2012. It is irrelevant whether the gap covered
       "over half of the fence"^ or "20-25 feet,"^ because, based on
       Wagenvoord's own measurements, the gap was large enough to afford
       people access to the base. Thus, the fence was not effective

    7. We also disagree with Wagenvoord's claim that the forfeiture should be
       cancelled because the Station's engineer did not admit that he was
       aware the fence had been down for about two weeks.^ Wagenvoord's
       assertion regarding the statement, which provided further evidence
       that Wagenvoord knew about the condition of the fence, yet took no
       action to repair it, is inconsistent with the contemporaneous notes of
       the inspection taken by the agent. Notwithstanding this claim, the New
       Orleans Office had sufficient evidence of the repeated and willful
       nature of the violation from its inspection of the antenna structure.^
       Accordingly, based on the evidence before us, we affirm the findings
       in the NAL and find that Wagenvoord willfully and repeatedly violated
       Section 73.49 of the Rules by failing to enclose its antenna structure
       within an effective locked fence.

    8. For the reasons discussed above, we find no basis to reduce or cancel
       the proposed forfeiture in this case. Although the Commission has
       "credited natural barriers or even [natural] conditions that
       temporarily impede direct access to a tower as mitigating factors,"^
       no such natural conditions are present here. Wagenvoord provides no
       reason why it was unable to construct an effective locked fence around
       the base of its antenna structure, and no natural barriers impeded
       access to the tower. Thus, based on the totality of the circumstances,
       we find cancellation or reduction of the forfeiture unwarranted and
       impose a forfeiture in the amount of $7,000.

   IV. ORDERING CLAUSES

    9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.204,
       0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Wagenvoord
       Advertising Group, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
       amount of seven thousand dollars ($7,000) for violation of Section
       73.49 of the Commission's rules.^

   10. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Wagenvoord Advertising Group, Inc. shall
       send electronic notification of payment to [1]SCR-Response@fcc.gov on
       the date said payment is made. The payment must be made by check or
       similar instrument, wire transfer, or credit card, and must include
       the NAL/Account number and FRN referenced above. Regardless of the
       form of payment, a completed FCC Form 159 (Remittance Advice) must be
       submitted.^ When completing the FCC Form 159, enter the Account Number
       in block number 23A (call sign/other ID) and enter the letters "FORF"
       in block number 24A (payment type code).   Below are additional
       instructions you should follow based on the form of payment you
       select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   Any request for full payment under an installment plan should be sent to:
   Chief Financial Officer--Financial Operations, Federal Communications
   Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
   20554.^  If you have questions regarding payment procedures, please
   contact the Financial Operations Group Help Desk by phone, 1-877-480-3201,
   or by e-mail, [2]ARINQUIRIES@fcc.gov.

   11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
       First Class Mail and Certified Mail Return Receipt Requested to
       Wagenvoord Advertising Group, Inc. at 2360 NE Coachman Rd.,
       Clearwater, FL 33765, and to its counsel, Dan J. Alpert, at 2120 N
       21^st Rd., Arlington, VA 22201.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director

   South Central Region

   Enforcement Bureau

   ^ 47 C.F.R. S 73.49.

   ^ Wagenvoord Advertising Group, Inc., Notice of Apparent Liability for
   Forfeiture and Order, 27 FCC Rcd 8126 (Enf. Bur. 2012). A comprehensive
   recitation of the facts and history of this case can be found in the NAL
   and is incorporated herein by reference.

   ^ Letter from Dan J. Alpert, Counsel for Wagenvoord Advertising Group,
   Inc., to Walter Gernon, District Director, New Orleans Office, South
   Central Region, Enforcement Bureau, at 3-5 (Aug. 18, 2012) (on file in
   EB-FIELDSCR-12-00000481) (NAL Response). Wagenvoord submitted photographs
   showing that its antenna structure was constructed on top of a 7-foot
   cement pylon and encased by an additional 19 . inches worth of insulator.
   Moreover, the antenna structure is located in the center of the cement
   pylon, 22 . inches from the edge of the pylon. "Thus, in order for a
   member of the public to reach the electrically-charged tower base, from
   the ground level, a person would have to be able to (i) reach upwards
   seven feet, and then reach an additional 22 . inches at approximately a 22
   degree angle - a distance of approximately nine feet in total. . . ." See
   Letter from Dan J. Alpert, Counsel for Wagenvoord Advertising Group, Inc.,
   to Walter Gernon, District Director, New Orleans Office, South Central
   Region, Enforcement Bureau at 2 (Nov. 19, 2012). See also Letter from Dan
   J. Alpert, Counsel for Wagenvoord Advertising Group, Inc., to Walter
   Gernon, District Director, New Orleans Office, South Central Region,
   Enforcement Bureau (Nov. 1, 2012).

   ^ NAL Response at 2.

   ^ Id. at 3.

   ^ 47 U.S.C. S 503(b).

   ^ 47 C.F.R. S 1.80.

   ^ The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ 47 C.F.R. S 73.49.

   ^ NAL Response at 5.

   ^ Christopher H. Bennett Broadcasting of Washington, Inc., Forfeiture
   Order, 23 FCC Rcd 11285 (Enf. Bur. 2008) (Bennett Broadcasting FO)
   (cancelling AM tower fencing forfeiture because of totality of
   circumstances - antenna structure built on 12-foot pier base in flood
   plain).

   ^ Id..

   ^ Bennett Broadcasting FO, 23 FCC Rcd at 11287.

   ^ Indeed Wagenvoord constructed a partial fence around the antenna
   structure.

   ^ Wagenvoord cites to the instructions to the Application for Construction
   Permit for Commercial Broadcast Station Form, which state that "access to
   AM stations must be restricted by a fence or other barrier that will
   preclude casual or inadvertent access to the site . . . ." NAL Response at
   4. The phrase "prevent casual or inadvertent access" was meant to describe
   the effective locked fence referenced in Section 73.49. The "other
   barrier" is an alternative only when construction of a fence is not
   possible.

   ^ NAL, 27 FCC Rcd at 8126. The agents from the New Orleans Office did not
   measure the gap in the fence and did not walk around the entire perimeter
   of the fence. The agents concluded over half of the fence was lying on the
   ground based on an approximation of what was visible from their vantage
   point. The photographs of the site appear to confirm the agents'
   conclusion.

   ^ NAL Response at 2.

   ^ Wagenvoord asserts that the Station's engineer stated the Station's
   nighttime operations had been down for about two weeks and did not say
   anything regarding the length of the fencing violation. NAL Response at 3.

   ^ Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), defines "willful"
   as the "conscious and deliberate commission or omission of [any] act,
   irrespective of any intent to violate" the law and provides that "[t]he
   term `repeated', when used with reference to the commission or omission of
   any act, means the commission or omission of such act more than once or,
   if such commission or omission is continuous, for more than one day." See
   Callais Cablevision, Inc., Notice of Apparent Liability for Monetary
   Forfeiture, 16 FCC Rcd 1359, 1362 (2001).

   ^ NAL Response at 4, citing Buchanan Broadcasting, Inc., Memorandum
   Opinion and Order, 15 FCC Rcd 4360 (Enf. Bur. 2000) (reducing forfeiture
   because "the muddy conditions around the base of the tower arguably
   impeded access, making the lack of effective fencing a less significant
   safety hazard") and A Radio Company, Inc., Memorandum Opinion and Order,
   22 FCC Rcd 2019 (Enf. Bur. 2007) (reducing forfeiture because base of
   tower surrounded by 12-inch deep swampy water filled with crocodiles,
   leeches, and local sewage overflow, thereby reducing safety hazard of lack
   of effective fencing) (A Radio Company MOO).

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
   73.49.

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^ See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 13-308

   5

   Federal Communications Commission DA 13-308

References

   Visible links
   1. mailto:SCR-Response@fcc.gov
   2. mailto:ARINQUIRIES@fcc.gov